McCarthy v Secretary of Home State The Judgement.

[walrusgumble]

http://curia.europa.eu/jurisp/cgi-bin/f ... Rechercher


http://curia.europa.eu/jurisp/cgi-bin/f ... Rechercher

JUDGMENT OF THE COURT (Third Chamber)

5 May 2011 (*)

(Freedom of movement for persons – Article 21 TFEU – Directive 2004/38/EC – ‘Beneficiary’ – Article 3(1) – National who has never made use of his right of free movement and has always resided in the Member State of his nationality – Effect of being a national of another Member State – Purely internal situation)

In Case C‑434/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Supreme Court of the United Kingdom, formerly the House of Lords (United Kingdom), made by decision of 5 May 2009, received at the Court on 5 November 2009, in the proceedings

Shirley McCarthy

v

Secretary of State for the Home Department,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, D. Šváby, R. Silva de Lapuerta (Rapporteur), E. Juhász and J. Malenovský, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 28 October 2010,

after considering the observations submitted on behalf of:

– Mrs McCarthy, by S. Cox, Barrister, and K. Lewis, Solicitor,

– the United Kingdom Government, by S. Ossowski, acting as Agent, and by T. Ward, Barrister,

– the Danish Government, by C. Vang, acting as Agent,

– the Estonian Government, by M. Linntam, acting as Agent,

– Ireland, by D. O’Hagan and D. Conlan Smyth, acting as Agents, and by B. Lennon, Barrister,

– the Netherlands Government, by C. Wissels and M. de Ree, acting as Agents,

– the European Commission, by D. Maidani and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 November 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 3(1) and Article 16 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35).

2 The reference was made in the course of proceedings between Mrs McCarthy and the Secretary of State for the Home Department (‘the Secretary of State’) concerning an application for a residence permit made by Mrs McCarthy.

Legal context

European Union law

3 According to recitals 1 to 3 in the preamble to Directive 2004/38:

‘(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.’

4 Chapter I of Directive 2004/38, entitled ‘General provisions’, comprises Articles 1 to 3 of the directive.

5 Article 1, entitled ‘Subject’, states:

‘This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.’

6 Article 2 of Directive 2004/38, entitled ‘Definitions’, provides:

‘For the purposes of this Directive:

1. “Union citizenâ€

[fatty patty]

Mrs. McCarthy had a slim chance from the start (as she was on benefits), it would have been a different story if she was exercising her treaty rights. I wonder if Mrs McCarthy say for e.g was disable (unable to work) would her application be looked at differently then. Or if her partner was to be not the burden/self sufficient. The amount of EU governments who were represented in the court.

[walrusgumble]

Mrs. McCarthy had a slim chance from the start (as she was on benefits), it would have been a different story if she was exercising her treaty rights. I wonder if Mrs McCarthy say for e.g was disable (unable to work) would her application be looked at differently then. Or if her partner was to be not the burden/self sufficient. The amount of EU governments who were represented in the court.

its the same procedure for preliminary references as you know.i accept it does not give all the answers and gives room for other cases.similar problem to zambrano.instead of saying told you so,i wont go as far like people 9eireann and say its clear cut & its here to stay.pitty court,again failed to confirm things. for now it shuts down the reverse discrimination lark for reasons i explained and got hammered on.i think,with sign of the times governments will not be sharing same attitudes as the courts. significant that commission said no.if zambrano is general application, this should be too

[walrusgumble]

Mrs. McCarthy had a slim chance from the start (as she was on benefits), it would have been a different story if she was exercising her treaty rights. I wonder if Mrs McCarthy say for e.g was disable (unable to work) would her application be looked at differently then. Or if her partner was to be not the burden/self sufficient. The amount of EU governments who were represented in the court.

the campaigners against so called reverse discrimination will not be happy. i think it has general application,irrespective if you work or not. look at paragraphs 53+54 they are clear distinctions to zambrano.movement is neccessary,it CAN happen for adults it cant for minor child unless they comply with chen. the important paragraph is 56.the interesting question is,what happens to mcarthy if she went to ireland or france as a brit but can't find work,therefore no eu fam for husband. is she then deprived of her family?then can article 21 save her?

[fatty patty]

In fairness i agree zambrano ruling I have to say is here for long haul, dynamics are somewhat different to those of metock/mccarthy. govts will try and restrict it as much as they can, dragging heels on decisions and attach strict or near impossible conditions to it (for e.g. DNA testing to be rolled out for every genuine/legit parent under the banner of dodgy cases rather than taking it on case by case basis). Ireland is the biggest loser on that one (zambrano ruling) I believe due to the policies undertaken in previous govts. It did not properly answer the reverse discrimination scenario as Mrs McCarthy applied as Irish and got refused (we all know why. Due to not not exercising treaty rights) if she would have for e.g. approved on basis of EU national then it would have given the rise to this notion of reverse discrimnation more as she got refused being Brit (although i believe reverse discrimantion has no case to ans it is present regarding family members of EU national if they are not exercising treaty rights and or using Singh route, i wont go as far as saying it is mere lark). It proves to show that being economically active is very imp for treaty cases and would not matter wether Mrs McCarthy being Brit or Irish it wouldn't have gone that far.

[walrusgumble]

In fairness i agree zambrano ruling I have to say is here for long haul, dynamics are somewhat different to those of metock/mccarthy. govts will try and restrict it as much as they can, dragging heels on decisions and attach strict or near impossible conditions to it (for e.g. DNA testing to be rolled out for every genuine/legit parent under the banner of dodgy cases rather than taking it on case by case basis). Ireland is the biggest loser on that one (zambrano ruling) I believe due to the policies undertaken in previous govts. It did not properly answer the reverse discrimination scenario as Mrs McCarthy applied as Irish and got refused (we all know why. Due to not not exercising treaty rights) if she would have for e.g. approved on basis of EU national then it would have given the rise to this notion of reverse discrimnation more as she got refused being Brit (although i believe reverse discrimantion has no case to ans it is present regarding family members of EU national if they are not exercising treaty rights and or using Singh route, i wont go as far as saying it is mere lark). It proves to show that being economically active is very imp for treaty cases and would not matter wether Mrs McCarthy being Brit or Irish it wouldn't have gone that far.

Zambrano and Chen are cases of "what about the children, think of the children". Clearly it is. It was unfair as it puts their parents in more advantageous position than say, people like McCarthy (born and bred EU) who will still need to show self sufficiency in another country (within reason). However, for now, its here to stay, until "Dependency" is considered, what does that mean? Both are exceptional cases. Its too early to suggest Ireland will drag its heels, lets see the type of cases that are refused first. The next step for Ireland would be to again change the citizenship rules to provide you can only be Irish as of birth unless at least one parent is an Irish Citizen or Naturalised Citizen at time of birth, maybe increase the residency requirement for naturalisation (not really a good idea as we need it - ie back door to eu, to intice amercian business to come)

THe DNA tests are required because some father's name is not on the child's birth certificate. If its not on it, arguably its a dodgy case!! Some father's never had anything to do with the child and are now forming a new found interest in the child (It may well be that the mother is at fault and the father never knew he could seek rights via family court). if fathers were that bothered they would have gone to family law courts with legal aid and sorted it out.

It is not a stringent request to make sure that the person who claims to be the parent is actually the parent. In most cases, there will be enough evidence provided to suffice and not require DNA tests. You would swear that Britian never do this, or you never came across a case like that before.

I recall a garda friend from the west had informed me that 6 years ago he dealt with a non national who brought a Irish child into the station with his partner to see if he could register - i don't know why. The garda was causually asking questions not exactly trick questions. No word of a lie, he first asked about the couple's history, the non national had only entered Ireland for the first time the January before. Meet the partner by March. The partner had given birth, they were coy about handing over the birth cert after 2-3 requests , father was not on it. (no big deal) The garda asked a few more harmless questions (how are you finding Ireland etc - at this point he knew something was not right) THe big clanger, the garda had asked when was the child born. March!!! the same month the partner meet the non national. Garda sarcastically laughed and asked whether the partner she had an advance womb. - Least to say, there will be some chancers, some who will be under a mistaken belief (unfortunately) that they are the daddy.

If there is not documentary proof, how do you expect them to prove themselves. Again, very few people will be expected to get this done. Bar the high costs, anyone who complains about it and has no basic proofs, really may have something to hide.

Basic DNA tests are not impossible and are actually quite common. They are not cheap but they are not completely impossible. Shop around. You are being hysterical when you suggest even as much as 10% will be required to do these tests. You also say genuine. No if there is no simple proofs of birth certs, it is not beyond the realm of possibility that its not genuine. If they were really that bothered they would have gone to court ages of go - via legal aid, sought some access (visiting hours), a declaration to get the name of the birth cert and possibly get joint guardianship. If people don't have some of these proofs, they have no business applying under zambrano until they do have proofs of actual relationship with child. It is NOT enough simply to be the father of the child. Any clown can achieve that. The judgment in Zambrano clearly states that there must be a genuine dependency on the parent or parents (even if parents are separated - it don't matter nor it breaks child's bond with them)

Don't tell me you suffer from the same symptoms of others on these boards. Where does it say most applications will need DNA test? It does not. And most cases that provide the basic documents to prove the child's bond will succeed.

The reason it did not properly answer the reverse discrimination matter is simple. THe ECJ and other EU Institutes do not recongise that there is any such thing. It recognised that outside their scope (ie Free movement to another country, and its not enough to be static) the ECJ have no right to comment and rule on the policy of another country. When people talk of discrimination, they are talking about like for like. The Treaty interpretation toss in Zambrano was very creative and inventive stuff. Bottom line is, you must travel to another EU state before you can invoke EU law. It is the basic requirement. Yes an Irish or Brit could rely on Singh and return to Ireland. But this has not happened in McCarthy. She had no real interest in her Irish Nationality in the first place. Regarding the British citizenship element, it clearly stated that it was not enough to be static, you have to actually move somewhere. Of course one needs to be economically active. Europe is not as free open door market as it is, certaintly not for non eu's. If eu's want their non eu family here, they are expected to finance them and not the state. It has always been this way really, (within reason)

[vinny]

See also McCarthy judgment available and Partners EU1 application refused on basis of dual citizen!!!

[rachellynn1972]

If the judgement of mccarthy was right, that means anyone from northern ireland cannot exercise there treaty right in United Kingdom and Repulblic of Ireland, both country will say they are citizens, that means they have to move to the third eu country, i think this is wrong, a condition that can never be right by the judgement. I want we all to look into this. That means as a dual national you cannot exercise your right in the dual country you are national you have to move to the third eu country, this is a very big condition on the right of free movement and i think lawyers can use this against the judgement. They are actually saying you cant exercise your right in the countries you have the dual nationality, that you have to move to the third Eu country. what a joke, this is against McCarthy human right for giving her condition to move to a third country to exercise her right, they should have simple say, she has not been a worker in her life, but i think she has one time been a student.

[Muttsnuts]

If the judgement of mccarthy was right, that means anyone from northern ireland cannot exercise there treaty right in United Kingdom and Repulblic of Ireland, both country will say they are citizens, that means they have to move to the third eu country, i think this is wrong, a condition that can never be right by the judgement. I want we all to look into this. That means as a dual national you cannot exercise your right in the dual country you are national you have to move to the third eu country, this is a very big condition on the right of free movement and i think lawyers can use this against the judgement. They are actually saying you cant exercise your right in the countries you have the dual nationality, that you have to move to the third Eu country. what a joke, this is against McCarthy human right for giving her condition to move to a third country to exercise her right, they should have simple say, she has not been a worker in her life, but i think she has one time been a student.

I haven't really read the judgement in detail but it appears to me that the ECJ took account of the fact that Ms McCarthy only obtained an Irish passport in order to bring herself within the sphere of EU Law. If you have had an Irish passport since birth and lived in the North I think it would be a different matter.

Either way, the judgement appears to close the door on the wider potential implications of Zambrano (re potential for EU Citizens to assert EU Free Movement rights in their own EU Country without requiring residence in another EU State).

[acme4242]

Obie,
There are conditions on EU citizens who live in another EU state, they
must be employed, self-employed, student or self-sufficient

This was the downfall of Mrs McCarty. She was not currently a student or employed

But is it correct to say such conditions only exist for 5 years, not your entire life ?

[Obie]

You are perfectly correct, after 5 years, a person cease from being subjected to restrictions. Once they have acquired the right of permanent residence, all restrictions are lifted. The restriction only comes back in place if the person leaves the state for more than two years.

My McCarthy has never exercised treaty rights in the UK in any capacity whatsoever. She sought to use her lawful residence as a British national, to claim right of permanent residence in UK. The is no need for a British national to claim permanent residence, they have that by virtue of their citizenship. That was one of the reason, amongs many, why she failed.

[acme4242]

You are perfectly correct, after 5 years, a person cease from being subjected to restrictions. Once they have acquired the right of permanent residence, all restrictions are lifted. The restriction only comes back in place if the person leaves the state for more than two years.

My McCarthy has never exercised treaty rights in the UK in any capacity whatsoever. She sought to use her lawful residence as a British national, to claim right of permanent residence in UK. The is no need for a British national to claim permanent residence, they have that by virtue of their citizenship. That was one of the reason, amongs many, why she failed.

It seems the fact that Mrs McCarty spent, (I assume) most of her young life in School studying is not counted as having exercised treaty rights.. studying ?
No mention of this, Or perhaps the lawyers didn't think it was significant.

[Obie]

If Mrs McCarthy's representatives had bought that up, i am sure the Home Office would have argued that in the days that Mrs McCarthy was attending school, the rights of self-sufficient EEA national to reside under Article 18, did not exist, that even if it was in existence, she would not qualify, as she might not have been in receipt of a comprehensive sickness insurance, and perhaps was not living in a self- SUFFICIENT capacity.

[walrusgumble]

If the judgement of mccarthy was right, that means anyone from northern ireland cannot exercise there treaty right in United Kingdom and Repulblic of Ireland, both country will say they are citizens, that means they have to move to the third eu country, i think this is wrong, a condition that can never be right by the judgement. I want we all to look into this. That means as a dual national you cannot exercise your right in the dual country you are national you have to move to the third eu country, this is a very big condition on the right of free movement and i think lawyers can use this against the judgement. They are actually saying you cant exercise your right in the countries you have the dual nationality, that you have to move to the third Eu country. what a joke, this is against McCarthy human right for giving her condition to move to a third country to exercise her right, they should have simple say, she has not been a worker in her life, but i think she has one time been a student.

Very interesting and potentially funny outcome. But it is not neccessarily correct.

If for example, a person who is of the Unionist persuasion wanted to come south of the boarder, he would succeed as he is a British Citizen and Northern Ireland (god help us) is in the jurisdiction of the UK - Hence the United Kingdom of Great Britain and Northern Ireland.

All people who lived in Northern Ireland are considered British, in the eyes of the British Government and most of the International World. The Jurisdiction it self is British. The South recognises this too. Although, the people of Irish Nationalist and Republican Backgrounds claim that they are Irish and only Irish, as they are permitted to do so under GFA, they are still leaving an International Boarder (ie Northern Ireland under the UK) and moving south. They could, funny enough and horror of horror, claim that they are British. Secondly, they could also say that they are exercising their EU rights as Irish people moving to another EU state ie Rep of Ireland.

GFA only deals with Citizenship Rights, it confirms the de facto Constitutional landscape of Ireland, North and South. It is up to the resident in Northern Ireland to decide what citizenship it picks up. Both States recognise that one can be a dual. GFA only affects northern residents. The relationship of Northern Ireland and the UK and Republic is quite significant and there are few if any other examples of this type of case, bar probably Cyprus.

It seems trickier for movement to the UK alright. Could Unionists (they would puke at the notion) claim they are citizens of Ireland if they move to London and succeed- even where they have not left the UK. What about Irish Republicans claiming to be Irish going to UK although never leaving the jurisdiction. In Chen, there was no need for movement, whilst the child got Irish citizenship in Northern Ireland (although still in UK jurisdiction) it was deemed to be exercising her EU rights when moving back to mainland UK

As for time as a student, whilst being a primary school student is sufficient to being a student, what are the chances of her (or her parents) showing that she had sufficient health insurance etc as per Article 7 of Directive 2004 38 EC? McCarthy as a British National, is free to move to Ireland, surely, even under the Surindeer shingh concept. The judgement was, the rules do not apply if you lived all your life in one country, never exercised your eu right s(work? or working and move? and have dual citizenship.

[Obie]

I agree that Zambrano is here to stay, whatever the memberstates do, i don't believe the CJEU will take a retrograde step to the dark old days . I will not necessarily say the same about McCarthy. I am of the strong believe that it is not here to stay, at least not in this vague form and certainly not in the long time. If i was a betting person, i would have comfortable put money on this, without loosing a single second of night sleep . Just like Akrich went as quickly as it came, so will McCarthy .

McCarthy judgement brought more questions than answer. If UK seek to implement it more restrictively than suggested from the judgement, or give a restrictive interpretation, it will be politically dangerous for the Good Friday agreement too.

Besides, the only reason why Mrs McCarthy went to court, was because she submitted her British passport in place of evidence of exercising treaty rights.

It is hardly surprising that it was found that her Irish Citizenship is not a genuine acquisation.

If she has submitted an Irish Passport and evidence of Treaty rights. There is no way the authorities would have known or investigated whether or not she holds another nationality.

A friend of mine who was worried about the ruling, received a letter in the post today, addressed to his partner of three years, stating his application for residence card has been approved. Even though he holds a British passport and has never been to Ireland.

For example if Mrs McCarthy was in employment, and her spouse was facing removal, would it not have been right to say, her forced removal from the UK, indirectly, as a result of the husbands refusal of visa and residency, could result in the substance of her rights under Article 21 being jeorpodise.

What if she was disabled, and face the prospect of relocating to a third country.

In which circumstance would an adult be considered as falling within the scope of Zambrano.

This judgement certainly did not address it. It states that adults are not precluded from Zambrano reasoning, but exactly in what circumstance this will be engaged was not addressed.

[walrusgumble]

I agree that Zambrano is here to stay, whatever the memberstates do, i don't believe the CJEU will take a retrograde step to the dark old days . I will not necessarily say the same about McCarthy. I am of the strong believe that it is not here to stay, at least not in this vague form and certainly not in the long time. If i was a betting person, i would have comfortable put money on this, without loosing a single second of night sleep . Just like Akrich went as quickly as it came, so will McCarthy .

McCarthy judgement brought more questions than answer. If UK seek to implement it more restrictively than suggested from the judgement, or give a restrictive interpretation, it will be politically dangerous for the Good Friday agreement too.

Besides, the only reason why Mrs McCarthy went to court, was because she submitted her British passport in place of evidence of exercising treaty rights.

It is hardly surprising that it was found that her Irish Citizenship is not a genuine acquisation.

If she has submitted an Irish Passport and evidence of Treaty rights. There is no way the authorities would have known or investigated whether or not she holds another nationality.

A friend of mine who was worried about the ruling, received a letter in the post today, addressed to his partner of three years, stating his application for residence card has been approved. Even though he holds a British passport and has never been to Ireland.

For example if Mrs McCarthy was in employment, and her spouse was facing removal, would it not have been right to say, her forced removal from the UK, indirectly, as a result of the husbands refusal of visa and residency, could result in the substance of her rights under Article 21 being jeorpodise.

What if she was disabled, and face the prospect of relocating to a third country.

In which circumstance would an adult be considered as falling within the scope of Zambrano.

This judgement certainly did not address it. It states that adults are not precluded from Zambrano reasoning, but exactly in what circumstance this will be engaged was not addressed.

What questions does McCarthy raise? The traditional view on Free movement of people has merely being confirmed and applied. But please do point out what questions need to be further answered. I accept there are a few more questions to be asked.

The exact same thing can be said about Zambrano, and we will get a better idea when the Irish Courts deal with it or send some cases to Europe. Even Brophy has acknolwedged, in their blogs the questions that need to be asked like

+ What does "genuine dependency mean"?
+ Can the child be dependent on the parents if the parents require social?, a move away from Chen
+ If a father, like in some of the Irish cases, were away from the child's life for about 3 years and the mother has legal status?; despite the right to have the company of both parents, is it true that the minor child will really be genuinely deprived of exercising their EU rights, after all, the mother is allowed to stay in Europe (that one is tricky, morally)
+ Can the State stop Zambrano applying to one parent who has committed crime?
+ What happens if parent has not actually been an active parent?

"If UK seek to implement it more restrictively than suggested from the judgement, or give a restrictive interpretation, it will be politically dangerous for the Good Friday agreement too. "

Regarding GFA, how will it be politically dangerous too? GFA deal with Citizenship and not territory, which remains with the UK. All Republicans have to do is go to the UK via Dublin (spend a night or two) and then they can say as Irish people coming from the Republic, we are exercising our rights to move to London. How many Unionists are that bothered about saying that they are Irish, many will claim Northern Ireland is within the Jurisdiction of Britian. Most Irish people on this island receive favourable immigration treatment from Britain anyway, and have done so for decades. I some how do not see many of the parties either knowing or giving a crap about McCarthy and Freemovement on this basis. But by all means, please do expand on your theory, you have a point.


McCarthy, knowing her Irish Nationality was not going to win, tried to say, in addition to other arguments, that a British citizen she should be able to rely on EU law just the same as a German in Britian - she was trying to make the reverese discrimination argument, which she lost, regardless of whether she worked or not. The second element dealign with dual citizenship, the EU recognised that she would be considered British as she never left Britian.

"It is hardly surprising that it was found that her Irish Citizenship is not a genuine acquisation. "

The Irish Constitution provides that had entitlement to Irish Citizenship as of birth. One does not need to actually pick up the passport to say they are Irish Citizens. The woman was a Plastic Paddy and probably gave little or no thought about her Irish roots until it became convenient to do so. You asked for 5 years ago, she may have said she was British, and proud of it.


"If she has submitted an Irish Passport and evidence of Treaty rights. There is no way the authorities would have known or investigated whether or not she holds another nationality. "

True enough, one does not need stamps endorsed on passport when travelling abroad.

Census Surveys normally gives an indication.

Turning to McCarthy and it might be relevant in some cases, The fact that her Irish passport and birth certificate would have stated that she was not born in Ireland but in the UK is a BIG GIVEAWAY, especially if born before the change of Citizenship laws as of birth in Britian. It would aleast suggest that McCarthy is possibly entited to citizenship of another country.


"A friend of mine who was worried about the ruling, received a letter in the post today, addressed to his partner of three years, stating his application for residence card has been approved. Even though he holds a British passport and has never been to Ireland."

Sorry who is the EU citizen and non eu citizen here? Friend or partner? Where was residency approved, to live in Ireland or Britian? - Its confusing because you say he holds a British passport and has never been to Ireland". Its rather odd that any application would be address to his partner (assuming that she is not an EU citizen) if the application was based on his EU citizenship, therefore he would be the applicant.


"For example if Mrs McCarthy was in employment, and her spouse was facing removal, would it not have been right to say, her forced removal from the UK, indirectly, as a result of the husbands refusal of visa and residency, could result in the substance of her rights under Article 21 being jeorpodise. "

Would they then have recognised the Irish Citizenship? Would they not say, look, you are free to travel to another EU State, you must give us evidence and argue that travel to another EU state is not feasible. Metock would stop another EU state from refusing them entery (provided she can work etc) An Attempt still needs to be made to move.

"What if she was disabled, and face the prospect of relocating to a third country. "

Third Country? She is still in the EU. What kind of diability How does one being disabled prevent you from living your life and travel and work. Maybe where you are from disability is a bad thing. I think it will need to be more than a mere inconvenience/hardship.


"In which circumstance would an adult be considered as falling within the scope of Zambrano.

This judgement certainly did not address it. It states that adults are not precluded from Zambrano reasoning, but exactly in what circumstance this will be engaged was not addressed"

when there is a genuine deprivement of one's right to remain in the EU?

[rachellynn1972]

All the immigration advicers and lawyers are having a meeting regarding this ruling, everyone in northern ireland gave a shit about it, the rupublican and Unionist, they are really worried. for now the way out in Northern ireland is to surrender your british passport if you really love your partner. Using your irish passport there is nothing they can say, because you are already on irish land, and ireland is just a border away that many irish go and come in everyday life. It is really going to affect the Good Friday Agreement if the UK implement this case.

[Muttsnuts]

All the immigration advicers and lawyers are having a meeting regarding this ruling, everyone in northern ireland gave a shit about it, the rupublican and Unionist, they are really worried. for now the way out in Northern ireland is to surrender your british passport if you really love your partner. Using your irish passport there is nothing they can say, because you are already on irish land, and ireland is just a border away that many irish go and come in everyday life. It is really going to affect the Good Friday Agreement if the UK implement this case.

I don't understand how this is going to affect the Good Friday agreement?

Is it considered exercising EU treaty rights if an Irish person moves to and works in Northern Ireland? I always thought that it was?

There is a good point though to be made here. What if Mrs McCarthy renounced her UK Citizenship and then applied for EU Treaty rights on the basis of her newly acquired Irish Passport?

[rachellynn1972]

What is exercising treaty right, to move out of your country before you can execise treaty right. if it is all about working, that is no problem which mccarthy have never done. Regarding good friday aggreement, this is what it said about the citizen and people of northern ireland:

[Recognition of the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose;]

It is not just politics, the agreement was the entitlement of the citizen who are the national of northern ireland. it said as they may (choose)

[Confirmation that the right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland;]

Is said and will not be AFFECTED BY ANY FUTURE CHANGE, as i said, the problem of the people of northern ireland is not only politics, it is about personality, who you are, an irish or british, till now many in northern ireland still say they are irish, some in belfast will not want to hear you call them british. that is in repect of the agreement. AS THEY MAY CHOOSE.

Now there is change in there right, they have to choose only one before they can exercise the treaty right of MOVING TO ANOTHER COUNTRY. That means if looking at a national of northern ireland to the case of dual citizen, they have to move away from northern ireland, ireland and great britain before they can exercise treaty right. This is a future change because northern ireland was established by the people living in it who some wish to be british and some wish to remain an irish.

http://en.wikipedia.org/wiki/Belfast_Agreement

[rachellynn1972]

If McCarhy renouce her British Nationality, she has right even without working...

Article 21 Freedom to move and reside

Article 21 (1) of the Treaty on the Functioning of the European Union[1] states that

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

The European Court of Justice has remarked that,

EU Citizenship is destined to be the fundamental status of nationals of the Member States[5]

The ECJ has held that this Article confers a directly effective right upon citizens to reside in another Member State.[5][6] Before the case of Baumbast,[6] it was widely assumed that non-economically active citizens had no rights to residence deriving directly from the EU Treaty, only from directives created under the Treaty. In Baumbast, however, the ECJ held that (the then[7]) Article 18 of the EC Treaty granted a generally applicable right to residency, which is limited by secondary legislation, but only where that secondary legislation is proportionate.[8] Member States can distinguish between nationals and Union citizens but only if the provisions satisfy the test of proportionality.[9] Migrant EU citizens have a "legitimate expectation of a limited degree of financial solidarity... having regard to their degree of integration into the host society"[10] Length of time is a particularly important factor when considering the degree of integration.

The ECJ's case law on citizenship has been criticised for subjecting an increasing number of national rules to the proportionality assessment.[9]

Right to change nationality.

Article 15 of the Universal Declaration of Human Rights states:

1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

[walrusgumble]

If McCarhy renouce her British Nationality, she has right even without working...

Article 21 Freedom to move and reside

Article 21 (1) of the Treaty on the Functioning of the European Union[1] states that

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

The European Court of Justice has remarked that,

EU Citizenship is destined to be the fundamental status of nationals of the Member States[5]

The ECJ has held that this Article confers a directly effective right upon citizens to reside in another Member State.[5][6] Before the case of Baumbast,[6] it was widely assumed that non-economically active citizens had no rights to residence deriving directly from the EU Treaty, only from directives created under the Treaty. In Baumbast, however, the ECJ held that (the then[7]) Article 18 of the EC Treaty granted a generally applicable right to residency, which is limited by secondary legislation, but only where that secondary legislation is proportionate.[8] Member States can distinguish between nationals and Union citizens but only if the provisions satisfy the test of proportionality.[9] Migrant EU citizens have a "legitimate expectation of a limited degree of financial solidarity... having regard to their degree of integration into the host society"[10] Length of time is a particularly important factor when considering the degree of integration.

The ECJ's case law on citizenship has been criticised for subjecting an increasing number of national rules to the proportionality assessment.[9]

Right to change nationality.

Article 15 of the Universal Declaration of Human Rights states:

1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 21
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

You seem to miss the lines in bold, ie Citizens Directive 2004/38EC.


"EU Citizenship is destined to be the fundamental status of nationals of the Member States"

That is the opinion of the ECJ. There is nothing on that line in the Treaty itself. Many countries are against Supranationalism and Federalism (well, if and when it does not suit them) The Constutitional Referendums are prime example.

No one is stopping McCarthy, an EU citizen to live in Europe. It is, however, expecting that EU citizen to be self sufficient or working in order to have their non EU family members in Europe. McCarthy and any other adult is free to move anywhere and rely on Metock. There is nothing disproportionate in requesting McCarthy to actually go and try and exercise her rights. McCarthy is not at risk of being moved, whether directly or indirectly from the EU. Zambrano, the child was in danger.

To allow McCarthy to reside without the requirements under Directive 2004/38, as we have seen in Zambrano, would actually cause discrimination towards EU nationals who move to places like Ireland as they are expected to comply with the Directive, at some point. There are no EU children involved in McCarthy either.

REmember, this line from the case
"Treaty does not create a generalized right for all EU citizens. The nature of article 18 EC Treaty still remains subordinate to free movement rights."

In Baumast, the case actually did involve a german national actually moving to the UK and for a period, actually had worked in the UK at one point. None of this happened in McCarthy. McCarthy does not fall under the Good Friday Agreement and in reality, it is likely that McCarthy previously considered herself as British true and true. It is clear that both the UK and ECJ were sceptical of McCarthy's claims of dual citizenship. That of course does not mean it should be applied in every case.

The Universal Declaration of Human Rights has little or no bearing or influence in the EU. We rely on ECHR, which, in Irish Law was not , until Lisbon, fully incorporated into domestic law. Even so, it is the choice of people like McCarthy to denounce her citizenship. THe State are not doing it, so there is no infringement of Article 15.


It seems clearish, from McCarthy, that the ECJ will take a similar approach to that of the ECtHR when the latter court considers Article 8 cases and the question of insourmountable obstacles.

[walrusgumble]

What is exercising treaty right, to move out of your country before you can execise treaty right. if it is all about working, that is no problem which mccarthy have never done. Regarding good friday aggreement, this is what it said about the citizen and people of northern ireland:

[Recognition of the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose;]

It is not just politics, the agreement was the entitlement of the citizen who are the national of northern ireland. it said as they may (choose)

[Confirmation that the right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland;]

Is said and will not be AFFECTED BY ANY FUTURE CHANGE, as i said, the problem of the people of northern ireland is not only politics, it is about personality, who you are, an irish or british, till now many in northern ireland still say they are irish, some in belfast will not want to hear you call them british. that is in repect of the agreement. AS THEY MAY CHOOSE.

Now there is change in there right, they have to choose only one before they can exercise the treaty right of MOVING TO ANOTHER COUNTRY. That means if looking at a national of northern ireland to the case of dual citizen, they have to move away from northern ireland, ireland and great britain before they can exercise treaty right. This is a future change because northern ireland was established by the people living in it who some wish to be british and some wish to remain an irish.

http://en.wikipedia.org/wiki/Belfast_Agreement

Good Friday makes no adverse comment that the terroritory of Northern Ireland is no longer British. Any Future change refers to any politcal and constitutional development between Belfast, Dublin and London. It did not even consider the significance of EU.

Whether we like it or not they are still under the jurisdiction of the British Crown and under British Laws.

Something tells me that the people of the Unionist faction won't be in a hurry to claim they are not British, they are of the view that they are IRISH IN A BRITISH CONTEXT and not, ahem, "IRISH IRISH" as we in the South or Nationalist in the North.

Germans and Irish (in the south) have to move anyway from their countries in order to exercise EU rights, so what? Its for the respective countries to decide what to do with their domestic laws, not Europe.

They can choose Nationality, but they can't choose international jurisidiction (well, actually the Northerns can)

[walrusgumble]

All the immigration advicers and lawyers are having a meeting regarding this ruling, everyone in northern ireland gave a shit about it, the rupublican and Unionist, they are really worried. for now the way out in Northern ireland is to surrender your british passport if you really love your partner. Using your irish passport there is nothing they can say, because you are already on irish land, and ireland is just a border away that many irish go and come in everyday life. It is really going to affect the Good Friday Agreement if the UK implement this case.

It is an interesting and worring issue. COuld you kindly provide some links of articles or quote articles on experts talking about the effect of GFA or it is just you assuming or hearing rumours. genuine requests

[cxka]

Further to the debate resulting from McCarthy 2011, has anyone noticed any differences in applying for an EEA Family Permit (and the resulting residence permit etc)?

I am a dual citizen of both the UK and Ireland and plan to apply for an EEA Family Permit to bring my partner to Northern Ireland to live with me in the future.

I now know that the McCarthy ruling may have a negative impact on our application (which will be lodged in Beijing). Has anyone had any experience of this?

I do not wish to open up another political debate, rather I would just like to know the easiest way of being with my non-EEA partner? If needs be, I am more than willing to renounce British Citizenship (I know that it can be resumed once again in the future anyway and, being the son of 2 British passport holders residing in NI this would not pose any kind of problem).

I would appreciate hearing from other NI residents who have applied for EEA family permits since the McCarthy ruling.

Thanks so much
Jim

[walrusgumble]

Further to the debate resulting from McCarthy 2011, has anyone noticed any differences in applying for an EEA Family Permit (and the resulting residence permit etc)?

I am a dual citizen of both the UK and Ireland and plan to apply for an EEA Family Permit to bring my partner to Northern Ireland to live with me in the future.

I now know that the McCarthy ruling may have a negative impact on our application (which will be lodged in Beijing). Has anyone had any experience of this?

I do not wish to open up another political debate, rather I would just like to know the easiest way of being with my non-EEA partner? If needs be, I am more than willing to renounce British Citizenship (I know that it can be resumed once again in the future anyway and, being the son of 2 British passport holders residing in NI this would not pose any kind of problem).

I would appreciate hearing from other NI residents who have applied for EEA family permits since the McCarthy ruling.

Thanks so much
Jim

McCarthy case paid attention, a bit actually, on the fact that she only applied for an Irish passport after marriage and clearly after advice. She was chancing her arm, and probably only a plastic paddy.

On the other hand, your position is actually very sensitive in the sense of what message it sends and the history of the Island. Maybe actual travel to either jurisdictions may help, something she did not do.

Essentially taking the word from it, and knowing that both the UK and Ireland strongly opposed this case in that judgment (knowing damn well its implications) McCarthy allows the States to ignore the dual nationality and may well go against you. As Northern Ireland is in British jurisdiction, legally people of Northern Ireland are........Brits.

Maybe leaving the North for a while might help. This is the key, actual movement

If you come south, as a Brit, you are clearly moving to, ahem, another country and exercising your rights; and when you return to the North, as a Brit, you are exercising Surindeer Singh case. EU law then applies.

If you leave the North to the South as an Irish person, you are ahem, "coming home". Technically and legally, leaving the North, would be no different than coming from London, and thus EU law kicks in. Alternatively, the Irish might say no to that (can't really as surindeer singh is still relevant), and if you can rely on Irish law to get wiffie into Ireland, (provided that she has no deportation order, contrary to belief, you could be ok). Then after a while, return to the North, as an Irish citizen, and you are definitely exercising your EU rights.

So in either way, I think you are exercising your rights. Both parts of Ireland are....... in other international jurisdiction. I would not be in a rush disclosing that you are a dual citizen or taken up the option. Ironically, declaring one passport (for immigration purposes) is prudent, do not confuse everything.

After all the nonsense of the past, its funny how both communities and dissenters of all the nonsense may NEED to take the passport of the other country, which they might not have taken before (you have no issue with it)

Alternatively, try Spain or France etc for a few months and then return to the north as whatever nationality you want. As a Brit, under Sureindeer case , or as an Irish citizen, normal rules apply[/u]